2009 (11) TMI 722 - SC - Indian Laws

Whether a statute made under Section 36 of the Bihar Agricultural Universities Act, 1987 providing for a benefit to the teaching staff, for which assent has been given by the Chancellor can be enforced in the absence of publication in the official Gazette - Held that - High Court committed an error in holding that the teachers became entitled to the benefit of the statute relating to time-bound promotion scheme, when the said statute made by the Board of Management was assented to by the Chancellor even though it was not published in the Gazette. The High Court also committed an error in observing that the non-publication was unreasonable and arbitrary, as it ignored the valid reasons assigned by the Chancellor for withdrawing his assent to the incomplete statute, in his order dated 19-3-1996. Allow these appeals, set aside the order of the High Court and dismissed the writ petitions filed by the respondents before the High Court.

Summary

Issues Involved:
1. Whether a statute made under Section 36 of the Bihar Agricultural Universities Act, 1987, providing for a benefit to the teaching staff, can be enforced in the absence of publication in the official Gazette.
2. Whether the respondents are entitled to the benefit of the Time-Bound Promotion Scheme under the notification dated 4-9-1991.

Issue-Wise Detailed Analysis:

1. Enforceability of the Statute Without Gazette Publication:
The core issue is whether a statute that has received the Chancellor's assent but has not been published in the official Gazette, as required by Section 36(4) of the Bihar Agricultural Universities Act, 1987, can be enforced.

Legal Provisions and Interpretation:
- Section 36 of the Act outlines the process for making statutes, which includes:
- The Board of Management making the statute.
- The Chancellor assenting to the statute.
- Publication of the statute in the official Gazette.
- The Bihar and Orissa General Clauses Act, 1917, defines a notification as "a notification in the Gazette" and mandates that any order, notification, or other matter must be published in the Gazette to be deemed duly made.

Court's Reasoning:
- The court emphasized that the publication in the official Gazette is an integral and mandatory part of the statute-making process under Section 36 of the Act. Until publication, the statute is considered incomplete and not valid or effective.
- The court rejected the argument that the requirement for Gazette publication could be considered directory rather than mandatory. The court highlighted that the statutory provision for publication is clear and unambiguous, making it a mandatory requirement.
- The court referred to previous judgments, such as B.K. Srinivasan v. State of Karnataka, which underscored the necessity of publication in the Gazette for subordinate legislation to take effect.

Conclusion:
The court concluded that the statute contained in the notification dated 4-9-1991 did not come into effect or become enforceable due to the absence of publication in the official Gazette. The High Court erred in holding that the teachers were entitled to the benefit of the statute based on the Chancellor's assent alone.

2. Entitlement to the Time-Bound Promotion Scheme:
The respondents sought the benefit of the Time-Bound Promotion Scheme as per the notification dated 4-9-1991, despite its non-publication in the official Gazette.

Background and Arguments:
- The Rajendra Agricultural University Shikshak Manch, an association of teachers, filed a writ petition challenging the Chancellor's order to keep the statute pending and sought directions for promotions as per the notification.
- The High Court initially dismissed the petition, stating that the statute did not come into effect due to non-publication in the Gazette.
- The Chancellor later declared the statute still-born and non-est for want of publication, citing inconsistencies with UGC and ICAR schemes.

High Court's Judgment:
- The High Court held that once the Chancellor gave his assent to the statute, he did not have the power to recall it.
- The High Court declared that the publication of the new statute in the official Gazette was only a formality and that the teachers had a vested right to the benefits of the statute from the date of the Chancellor's assent.

Supreme Court's Analysis:
- The Supreme Court disagreed with the High Court's view, emphasizing that the publication in the official Gazette is a mandatory requirement for the statute to become valid and enforceable.
- The court noted that the non-publication was not arbitrary or unreasonable, as valid reasons were provided by the Chancellor for withdrawing his assent.

Conclusion:
The Supreme Court concluded that the respondents were not entitled to the benefit of the Time-Bound Promotion Scheme under the notification dated 4-9-1991 due to the lack of publication in the official Gazette. The appeals were allowed, and the High Court's order was set aside, dismissing the writ petitions filed by the respondents.

Final Judgment:
The Supreme Court allowed the appeals, set aside the High Court's order, and dismissed the writ petitions filed by the respondents. The statute providing for the Time-Bound Promotion Scheme did not come into effect due to the absence of publication in the official Gazette, and the respondents were not entitled to its benefits.